Patna High Court - Orders
Subodh Kumar vs The State Of Bihar on 24 July, 2018
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.1127 of 2017
Arising Out of PS.Case No. -219 Year- 2013 Thana -LALIT NARAYAN UNIVERSITY District-
DARBHANGA
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1. Subodh Kumar S/o Late Suresh Prasad Choudhary R/o Mohalla-
Kathalwari, P.S. L.N.M.U., District- Darbhanga.
.... .... Appellant/s
Versus
1. The State of Bihar .... .... Respondent/s
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Appearance :
For the Appellant/s : Mrs. Soni Shrivastava, Adv
Mr. Ravi Bhardwaj, Adv.
For the Respondent/s : Mr. Bipin Kumar, APP
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV ORDER
10 24-07-2018Heard both sides over I.A. No. 1923/2018 filed on behalf of appellant.
2. Seldom it occurs. However, the present scenario depicts the same. Before having a solution of present abstruse, it looks appropriate to have a glance over factual matrix.
The sole appellant has been found guilty for an offence punishable under Section 376 of the IPC and sentenced to undergo RI for 10 years as well as to pay fine of Rs. 50,000/- in default thereof, to undergo RI for 2 years additionally, by 4th Additional Sessions Judge, Darbhanga in Sessions Trial No. 50/2015 vide judgment of conviction dated 28.02.2017 and order of sentence dated 03.03.2017. Prosecutrix alleged that on 15.02.2013, she was raped by the appellant who was on visiting term being a distant relative and subsequently thereof, being apprehensive of untoward event, appellant offered to marry and under the garb of aforesaid Patna High Court CR. APP (SJ) No.1127 o f 2017 (10) dt.22-07-2018 2 allurement, he succeeded in convincing, overpowering the victim whereunder he continued with physical intimacy as a result of which the victim became pregnant. Then thereafter, appellant refused to marry. At an initial stage of the appeal having been admitted, prayer for bail was filed and the same was rejected vide order dated 12.07.2017. Subsequently thereof, prayer has been re-
agitated under I.A. No. 852/2018 and during course of hearing of the aforesaid I.A. petition, the factual aspect of the case was flashed inconsonance with the evidence (chief cross-examination) along with different judicial pronouncements and virtually, the exercise has been adopted at the end of the learned counsel for the appellant posed to be arguing the appeal on its merit confining the same under banner of promiscuous activity whereupon, order was reserved and then, vide judgment dated 27.06.2018, appeal was dismissed.
3. Now the grievance at the end of the appellant happens to be that though, the merit of the case was touched but the same was in order to persuade the Bench that from the evidence of the victim PW-5, being major was a consenting party and so, it was not a case of rape whereupon bail should be granted.
The exercise having been done at the end of the appellant was only for bail and not on merit of the appeal though, the evidences were referred to in such a manner and that being so, by the Patna High Court CR. APP (SJ) No.1127 o f 2017 (10) dt.22-07-2018 3 impugned judgment the right of the appellant has been prejudiced.
Consequent thereupon, the same be recalled.
4. The learned APP, while opposing the prayer, has submitted that because of the fact that evidences in such a manner projecting arguing the appeal on its merit has been referred and that happens to be reason behind in getting the judgment impugned. So, no interest of the appellant could be found prejudiced.
5. Certainly, I.A. No. 852/2018 was being heard over the question of bail in accordance with Section 389(1) CrPC and during course thereof, the learned counsel for the appellant endeavoured her best to persuade the Bench to accept her submission that being major, the victim (PW 5) was a consenting party and further tried to explore from the evidence whereupon referred the same and on account thereof, the judgment impugned has been delivered, dismissing the appeal.
6. A prohibition has been imposed in altering, modifying, the judgment once it is delivered. However, like Section 151 CrPC, no such provision is found under the CrPC so far, subordinate courts are concerned. However, Section 482 of the CrPC prescribes and properly identifies the power of the High Court under its inherent jurisdiction and further having been boundless limit.
Patna High Court CR. APP (SJ) No.1127 o f 2017 (10) dt.22-07-2018 4
7. In Surya Baksh Singh v. State of Uttar Pradesh as reported in (2014) 14 SCC 222, it has been held as follows:-
"7. Last, but not least in our appreciation of the law, Section 482 of the CrPC stands in solitary splendour. It preserves the inherent power of the High Court. It enunciates that nothing in the CrPC shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary, firstly, to „give effect to any order under the CrPC‟, words which are not to be found in the Code of Civil Procedure, 1908 (hereafter referred to as „CPC‟). Ergo, the High Court can, while exercising inherent powers in its criminal jurisdiction, take all necessary steps for enforcing compliance of its orders. For salutary reason Section 482 makes the criminal Court much more effective and all pervasive than the civil Court insofar as ensuring obedience of its orders is concerned. Secondly, Section 482 clarifies that the CrPC does not circumscribe the actions available to the High Court to prevent abuse of its process, from the inception of proceedings till their culmination. Judicial process includes compelling a respondent to appear before it. When the Court encounters a recalcitrant Appellant/convict who shows negligible interest in prosecuting his appeal, none of the Sections in Chapter XXIX of the CrPC dealing with appeals, precludes or dissuades it from dismissing the appeals. It seems to us that passing such orders would eventually make it clear to all that intentional and repeated failure to prosecute the appeal would inexorably lead not merely to incarceration but more importantly to the confirmation of the conviction and sentence consequent on the dismissal of the appeal. Thirdly, none of the provisions of the CrPC can possibly limit the power of the High Court to otherwise secure the ends of justice. While it is not possible to define the concept of „justice‟, suffice it to say that it encompasses not just the rights of the convict, but also of victims of crime as well as of the law abiding section of society who look towards the Courts as vital instruments for preservation of peace and the curtailment or containment of crime by Patna High Court CR. APP (SJ) No.1127 o f 2017 (10) dt.22-07-2018 5 punishing those who transgress the law. If convicts can circumvent the consequence of their conviction, peace, tranquility and harmony in society will be reduced to a chimera. Section 482 emblazons the difference between preventing the abuse of the jural process on the one hand and securing of the ends of justice on the other. It appears to us that Section 482 of the CrPC has not been given due importance in combating the rampant malpractice of filing appeals only for scotching sentences imposed by criminal Courts.
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18. 12. Section 482 of the CrPC is of singular and seminal significance. The statutory provision which immediately comes to mind is Section 151 of the CPC because to a great extent the language is identical. We are juxtaposing the two Sections for the facility of reference:-
Section 482 of CrPC Section 151 of CPC "482. Saving of inherent powe r "151.Saving of inherent powe rs of High Court.-- Nothing in of Court.-- Nothing in this Code this Code shall be deemed to shall be deemed to limit or limit or affect the inherent otherwise affect the inherent powers of the High Court to power of the Court to make such make such orders as may be order as may be necessary for the necessary to give effect to any ends of justice or to prevent abuse order under this Code, or to of the process of the Court. prevent abuse of the process of any Court or otherwise to secure the ends of justice.
It is at once obvious that whereas Section 482 of the CrPC is available only to the High Courts, Section 151 can be resorted to at any stage of civil judicial proceedings in any of the hierarchical tiers. Secondly, the use of the word „otherwise‟ in Section 482 has the avowed Patna High Court CR. APP (SJ) No.1127 o f 2017 (10) dt.22-07-2018 6 effect of boundlessly broadening the boundaries of inherent powers of the High Court in exercise of its criminal jurisdiction. Thirdly, Section 482 can be employed to ensure obedience of any order passed by the Court because of the phrase "to give effect to any order under this Code".
19. State of Karnataka v. L. Muniswamy, (1977) 2 SCC 699 enunciates that in exercise of its inherent powers in criminal matters "the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed.....The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the Legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction".
20. A Three-Judge Bench clarified in Krishnan v. Krishnaveni, (1997) 4 SCC 241 that although a second Revision before the High Court after dismissal of the first one by the Court of Sessions is barred by Section 397(3), the inherent powers of the High Court under Section 482 are nevertheless available albeit with restraint so as to avoid needless multiplicity of the proceedings. This Court had opined that "when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities ..... The inherent power of the High Court is not one conferred by the Code but one which the High Court already has in it and it is preserved by the Court".
8. In Vishnu Agarwal v. State of Uttar Pradesh as reported in (2011) 14 SCC 813 , it has been held as follows:-
6. In our opinion, Section 362 cannot be considered in a rigid and over technical manner to defeat the ends of justice. As Brahaspati has observed :
"Kevalam Shastram Ashritya Na Kartavyo Vinirnayah Yuktiheeney Vichare tu Dharmahaani Patna High Court CR. APP (SJ) No.1127 o f 2017 (10) dt.22-07-2018 7 Prajayate"
which means:
"The Court should not give its decision based only on the letter of the law.
For if the decision is wholly unreasonable, injustice will follow."
7. Apart from the above, we are of the opinion that the application filed by the respondent was an application for recall of the Order dated 2.9.2003 and not for review. In Asit Kumar Vs. State of West Bengal and Ors. 2009(1) SCR 469, this Court made a distinction between recall and review which is as under:-
"6. There is a distinction between ...... a review petition and a recall petition. While in a review petition, the Court considers on merits whether there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party.
7. We are treating this petition under Article 32 as a recall petition because the order passed in the decision in All Bengal Licensees Association Vs. Raghabendra Singth & Ors. [2007(11) SCC 374] cancelling certain licences was passed without giving opportunity of hearing to the persons who had been granted licences."
8. Hence, we see no error in the impugned order passed by the High Court. The appeal fails and is accordingly dismissed."
9. In the case of Uma Shanker Jha v. State of Bihar as reported in 2001(3) PLJR 728, it has been held as follows:-
6. The learned counsel has also relied upon a decision decided by me which finds reported in 2000 (2) All P.L.R.506 which is also on the point of recall and after relying on the judgments reported in A.I.R. 1987 Raj. 83 (FB), 1985 Cr. L.J. 23 the order passed in Cr. Misc. No. 3920 of 1995 (R) was Patna High Court CR. APP (SJ) No.1127 o f 2017 (10) dt.22-07-2018 8 recalled. Relying upon the aforesaid decisions it was submitted that the petitioner was deprived of his valuable right of hearing and for the fault of the lawyer the petitioner should not be made to suffer. It was submitted that the petitioner has not prayed for reviewing the order which is prohibited under Section 362 of the Cr. P.C. rather, the prayer is to recall the order so that the petitioner may be heard and Court has ample power under section 482 of the Cr. P.C. to recall the order to secure the ends of justice. The learned counsel also submitted that even if it is found that the counsel appearing for the petitioner was negligent or careless the petitioner should not suffer, for his inaction. So, in this view of the matter also an opportunity should be given to the petitioner and the matter may be decided on merits.
7. The learned counsel referred to the case of Emperor vs. Shivadutt, (1928) III Ind Cases 573 (A.I.R. Oudh 402) wherein it was held as under :
"Where owing to counsel's carelessness in not appearing in the Court at the time, when a case is called on for hearing, his client's case goes unrepresented and an ex parte order is passed, the High Court has jurisdiction under S. 561-A of the Cr. P.C. to entertain an application to re-hear the matter, if, in its discretion, it considers it necessary to do so in order to secure the ends of justice."
In the case of Central Inland Water Transport Corporation Ltd. vs. Brojo Nath Ganguly, A.I.R. 1986 S.C. 1571 it was held as under :
"The law exists to serve the needs of the society which is governed by it. If the law is to play its allotted role of serving the needs of the society, it must reflect the ideas and ideologies of the society. It must keep time with the heart beats of the society and with the needs and aspiration of the people. As the society changes, the law cannot remain immutable. The early nineteenth century essayist and wit, Sydney Smith said : "When I hear any man talk of an unalterable law, I am convinced that he is an unalterable Fool.' The law must, therefore, in a changing society march in tune with the changed ideas and ideologies. Legislatures are, however, not best fitted for the rule of adapting the law to the necessities of the time for the legislative process is too slow and the legislatures often divided by politics, slowed down by periodic elections and Patna High Court CR. APP (SJ) No.1127 o f 2017 (10) dt.22-07-2018 9 overburdened with myriad other legislative activities. A constitutional document is even less suited to this task, for the philosophy and the ideologies underlying it must of necessity be expressed in broad and general terms and the process of amending a Constitution is too cumbersome and time consuming to meet the immediate needs. This task must, therefore, of necessity fall upon the Courts because the Courts can by the process of judicial interpretation adapt the law to suit the needs of the society.
In the case of Rafiq vs. Munshilal A.I.R. 1981 S.C. 1400 it has been held as under :
"Where an appeal filed by the appellant was disposed of in absence of his counsel, so also his application for recall of order of dismissal was rejected by the High Court, the Supreme Court in appeal set aside both the orders of dismissal on the ground that a party who as per the present adversary legal system, has selected his advocate, briefed him and paid his fee can remain supremely confident that his lawyer will look after his interest and such an innocent party who has done everything in his power and expected of him, should not suffer for the inaction, deliberate omission or ' mis-demeanour of his counsel."
8. The learned counsel appearing for the State, however, submitted that the Criminal Revision no. 54/99 which was dismissed by order dated 7.5.2001 by this Court after considering the merits cannot be altered or reviewed and the inherent powers under section 482 of the Cr. P.C. cannot be exercised to do what the Code specifically prohibits the courts from doing. It was submitted that section 362 expressly prohibits the Court from altering or reviewing its final order after the same is signed. As such, it would not be open to High Court to review or alter the order by admitting a fresh revision application. It was submitted that in view of the provisions of section 362 Cr. P.C. the order dated 7.5.2001 cannot be recalled.
9. In the case of Habu vs. State of Rajasthan Full Bench A.I.R. 1987, 83 after considering the various judgments of the Apex Court, their lordships were of the view that the inherent power given under section 482 of the Cr. P.C. are wide enough to cover any type of cases, if three conditions as mentioned therein so warrant, namely, :
Patna High Court CR. APP (SJ) No.1127 o f 2017 (10) dt.22-07-2018 10
(a) For the purpose of giving effect to any order passed under the Code of Criminal Procedure, (b) For the purpose of preventing abuse of the process of any Court, (c) For otherwise securing the ends of justice.
The following views were also ex-
pressed in the same judgment :
(i) The principles of auti alteram partem shall be violated if right of hearing is taken away.
(ii) That when the judgment is recalled it is a complete obliteration/abrogation of the earlier judgment and the Appeal or the Revision, as the case may be, has to be heard and decided afresh.
(iii) That no fixed parameters can be fixed and hard and fast rule also cannot be laid down and Court in appropriate cases where it is specified that one of the three conditions of Section 482 of the Cr. P.C. are attracted should interfere.
10. It is well known dictum that justice has not only to be done but it should also appear to have been done and therefore, whenever a litigant comes before the Court it is essential that he must go having full faith in his mind and the Court has done justice with his case and he must at least have the satisfaction that he has been heard by Court. The position of a litigant is also helpless because he has to depend upon his lawyer and mercy of others. He has full confidence on his counsel that he will do his best in his interest. It is well settled that if due to carelessness or laches on the part of lawyer, a case is dismissed the litigant should not be made to suffer. In the instant case the admitted position is that the counsel appearing for the petitioner was not present on any date when the case was fixed for hearing and through the aid of his colleague adjournments were prayed for which were allowed by the court on three occasions but ultimately the court was compelled to reject the similar prayer since the matter had become too old and the stay was granted in this case. Eventually, the matter was heard ex parte and revision preferred by the petitioner was dismissed after perusing the order passed by the trial court. It would, therefore, appear that no detail hearing was done in the case and the petitioner could not get the opportunity of detail hearing. The counsel for the petitioner has, therefore, submitted that the petitioner was highly prejudiced because his case was not Patna High Court CR. APP (SJ) No.1127 o f 2017 (10) dt.22-07-2018 11 argued due to which the revision application was dismissed and the petitioner did not get justice. There was lapse on the part of conducting lawyer which has made him to suffer. It was, therefore, submitted that in the ends of justice the petitioner should be afforded an opportunity of hearing which will be in conformity with the principles of natural justice and the court has inherent powers under sections 482 of the Cr. P.C. to recall the order for securing the ends of justice.
11. The Apex Court in the case of Bhagwat Singh vs. Commissioner of Police reported in A.I.R. 1986 S.C. 1285 held as under : "To emphasize is that right of hearing is very important right which no litigant should be deprived." In view of the principles laid down by the Apex Court in so many decisions as also the decision reported in A.I.R. 1987 Rajasthan 83 which is based on several decisions of the Apex Court, I am of the view that the order dated 7.5.2001 passed in Criminal Revision No. 54 of 1999 should be recalled for the ends of justice.
10. In the case of A. R. Antulay v. R.S. Nayak as reported in (1988) 2 SCC 602, wherein the court took notice of the earlier order passed by itself and while setting it aside observed as follows:-
81. This case has caused us considerable anxiety. The appellant accused has held an important position in this country, being the Chief Minister of a premier State of the country. He has been charged with serious criminal offences. His trial in accordance with law and the procedure established by law would have to be in accordance with the 1952 Act. That could not possibly be done because of the directions of this Court dated 16th February, 1984, as indicated above. It has not yet been found whether the appellant is guilty or innocent. It is unfortunate, unfortunate for the people of the State, unfortunate for the country as a whole, unfortunate for the future working of democracy in this country which, though is not a plant of an easy growth yet is with deep root in the Indian polity that delay has occurred due to Patna High Court CR. APP (SJ) No.1127 o f 2017 (10) dt.22-07-2018 12 procedural wrangles. The appellant may be guilty of grave offences alleged against him or he may be completely or if not completely to a large extent, innocent. Values in public life and perspective of these values in public life, have undergone serious changes and erosion during the last few decades.
What was unheard of before is common place today. A new value orientation is being undergone in our life and in our culture. We are at the threshold of the cross-roads of values. It is, for the sovereign people of the country to settle those conflicts yet the Courts have vital roles to play in such matters. With the avowed object of speedier trial the case of the appellant had been transferred to the High Court but on grounds of expediency of trial he cannot be subjected to a procedure unwarranted by law, and contrary to the constitutional provisions. The appellant may or may not be an ideal politician. It is a fact, however, that the allegations have been brought against him by a person belonging to a political party opposed to his but that is not the decisive factor. If the appellant Shri Abdul Rehman Antulay has infringed law, he must be dealt with in accordance with the law. We proclaim and pronounce that no man is above the law, but at the same time reiterate and declare that no man can be denied his rights under the Constitution and the laws. He has a right to be dealt with in accordance with the law and not in derogation of it. This Court? in its anxiety to facilitate the parties to have a speedy trial gave directions on 16th February, 1984 as mentioned hereinbefore without conscious awareness of the exclusive jurisdiction of the Special Courts under the 1952 Act and that being the only procedure established by law, there can be no deviation from the terms of Article 21 of the Constitution of India. That is the only procedure under which it should have been guided. By reason of giving the directions on 16th February, 1984 this Court had also unintentionally caused the appellant the denial of rights under Article 14 of the Constitution by denying him the equal protection of law by being singled out for a special procedure not provided for by law. When these factors are brought to the notice of this Court, even if there are any technicalities this Court should not feel shackled and decline to rectify that injustice or other vise the injustice noticed will Patna High Court CR. APP (SJ) No.1127 o f 2017 (10) dt.22-07-2018 13 remain forever a blot on justice. It has been said long time ago that "Actus Curiae Neminem Gravabit"-an act of the Court shall prejudice no man. This maxim is founded upon justice and good sense and affords a safe and certain guide for the administration of the law.
82. Lord Cairns in Alexander Rodger v. The Comptoir D'escompte De Paris, (Law Reports Vol. III 1869-71 page 465 at page 475) observed thus:
"Now, their Lordships are of opinion, that one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the Suitors, and when the expression 'the act of the Court' is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case. It is the duty of the aggregate of those Tribunals, if I may use the expression, to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court."
83. This passage was quoted in the Gujarat High Court by D.A. Desai, J. speaking for the Gujarat High Court in Vrajlal v. Jadavji (supra) as mentioned before. It appears that in giving directions on 16th February, 1984, this Court acted per incuriam inasmuch it did not bear in mind consciously the consequences and the provisions of sections 6 and 7 of the 1952 Act and the binding nature of the larger Bench decision in Anwar Ali Sarkar's case (supra) which was not adverted to by this Court. The basic fundamentals of the administration of justice are simple. No man should suffer because of the mistake of the Court. No man should suffer a wrong by technical procedure of irregularities. Rules or procedures are the hand-maids of justice and not the mistress of the justice. Ex debite justitiae, we must do justice to him. If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied. This is a peculiar fact of this case which requires emphasis.
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86. ln the aforesaid view of the matter and Patna High Court CR. APP (SJ) No.1127 o f 2017 (10) dt.22-07-2018 14 having regard to the facts and circumstances of the case, we are of the opinion that the legal wrong that has been caused to the appellant should be remedied. Let that wrong be therefore remedied. Let right be done and in doing so let no more further injury be caused to public purpose.
87. ln the aforesaid view of the matter the appeal is allowed; all proceedings in this matter subsequent to the directions of this Court on 16th February, 1984 as indicated before are set aside and quashed. The trial shail proceed in accordance with law, that is to say under the Act of 1952 as mentioned hereinbefore.
11. In the case of Asit Kumar Kar v. State of West Bengal as reported in (2009) 2 SCC 703, it has been held as follows:-
4. It is a basic principle of justice that no adverse orders should be passed against a party without hearing him. This is the fundamental principle of natural justice and it is a basic canon of jurisprudence. In the Seven Judge Constitution Bench of this Court, A.R. Antuley v. R.S. Nayak & Anr. 1988 (2) SCC 602] it has been observed in paragraph 55 thereof:
"55. So also the violation of the principles of natural justice renders the act a nullity".
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6. There is a distinction between a petition under Article 32, a review petition and a recall petition. While in a review petition the Court considers on merits where there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party.
7. We are treating this petition under Article 32 as a recall petition because the order passed in the decision in All Bengal Licensees Association v. Raghabendra Singh & Ors. [2007 (11) SCC 374] cancelling certain licences was passed without giving opportunity of hearing to the persons who had been Patna High Court CR. APP (SJ) No.1127 o f 2017 (10) dt.22-07-2018 15 granted licences. In these circumstances, we recall the directions in paragraph 40 of the aforesaid judgment. However, if anybody has a grievance against the grant of licences or in the policy of the State Government, he will be at liberty to challenge it in appropriate proceedings before the appropriate Court. The writ petitions are disposed of with these directions".
12. Consequent thereupon, the judgment impugned is recalled. I. A. No. 1923/2018 is allowed. However, it looks appropriate to direct this matter to be delisted from my board.
(Aditya Kumar Trivedi, J)
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